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Can the system be fixed?

Reforming the death penalty

By: Marlene Martin

Earlier this year, for the first time in 27 years, a bill to abolish the death penalty made it out of committee in the Illinois House and was headed to the floor for a debate. But there wasn't enough support in the full House to win passage, so the legislation will be reintroduced next year.

At the same time, though, these same legislators voted overwhelmingly for significant reforms to the death penalty system. If the governor signs these proposals, Illinois would become the first state to require by law that all interrogations and confessions of murder suspects be videotaped. Other noteworthy reforms include a reduction in the number of crimes eligible for the death penalty, easing of access to DNA testing and expansion of the Illinois Supreme Court's ability to overturn an unjust death sentence.

These reforms would in all likelihood lessen the number of people sentenced to death in Illinois, including the number of innocent people sent to death row. This is a good thing. We are in favor of police and prosecutors being restrained from their gunslinging ways. But this isn't enough.

That these reforms are being put forward is an indication that the ugly reality of the death penalty has been exposed, and a serious questioning of the workings of the death penalty has been underway. But we would be wrong to think that these reforms would "fix" the death penalty enough to accept its continued use.

Reforms won't do away with wrongful convictions, and they won't do away with the class bias and racism of the death penalty system. They may curtail, but they won't end, unfairness.

The problem is that many of the lawmakers who support reform measures hope that these changes will legitimate the use of the death penalty again. They hope to point to reforms to say that the death penalty has been "fixed" -- so that Illinois' moratorium can be lifted. Our struggle over the next year will be to convince them of the case for abolition.

In making our case we need to point out the limitations of reforms. For example, videotaped interrogations and confessions aren't unquestionable proof. Questions remain: What happened before the suspect got to the interrogation room? Girvies Davis, who was executed in Illinois, and Dennis Williams, who was exonerated from death row, both said they were driven around in a police car and threatened if they didn't confess -- far from any interrogation room. And there are examples of defendants who gave apparently non-coerced confessions on videotape -- for example, a Chicago man, Corethian Bell, who confessed to the murder of his mother -- who were later proven innocent and released.

Likewise, while every prisoner should be allowed DNA testing, what about those who have cases where there is no DNA to test. Of the more than 100 people exonerated and freed from death rows across the country since reinstatement of the death penalty, only about one in eight were the result of DNA testing.

Twenty-seven years ago, the U.S. Supreme Court overturned every death sentence in this country and put a ban on executions because of the racial bias and unfairness of the death penalty. Only a few years later, states passed new death penalty statues that were to supposed to "reform" away any bias and racism.

But one look at the state of the death penalty today shows that the reforms didn't work. For example, Blacks make up 40 percent of death row prisoners nationally, but are just 12 percent of the population. Blacks are given harsher penalties for similar crimes, including murder, and there are still cases in which the defendant is the only Black face in the courtroom. There are still attempts by prosecutors to keep Blacks off the jury because they are thought to be more lenient towards defendants.

In 1987, when the U.S. Supreme Court heard the case of McClesky v. Kemp, it admitted that racism was part of the criminal justice system -- but essentially said that we would just have to live with it. The court's opinion in the case said that McClesky's claim that the death penalty was unconstitutional because of its racial bias, "taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system."

That's correct. And it's why we can't be satisfied with reforms to a system that will always be unjust. That is what our slogan is: The death penalty is too flawed to fix.